Thursday, April 05, 2007

Day Three: All the action still is centered around Kyiv with no campaigning or protest outside Ukraine's Capital.

The President is insisting on everyone obeying his Presidential decree even going so far as threatening those that resist with court action.

The Government has lodge their appeal against the President's decree with the Constitutional Court. The Court has indicated that it will respond to the appeal in two weeks time. Public confidence in the Constitutional Court is at at all time low with suggestions that the Court is dysfunctional and paralysis by political conflict with judges splitting along the lines of political appointment.

The President claims that he has acted within the terms of Ukraine's Constitution (Article 90) but has failed to outline exactly where the constitution gives him that authority.

Offers to resolve the current crisis through political negotiations have failed with the President rejecting any review, even by the courts, of his decision.

Ukraine's President Viktor Yushchenko, has excluded Ukraine's Parliamentary Speaker and second in command, Olexander Moroz from participating in National Security Council negotiations.Rumors are abound that the President is planning to declare a State of Emergency and will impose military rule over the government after Easter.

Ukraine's economy is beginning to come under threat. Analyst's commenting that whilst they would prefer political stability, conflict between the Office of the President and the Parliament has already been taken into consideration. At risk is Ukraine's estimated 7-9% annual growth.

All this could change at a moments notice. Even more so if the President declares Martial Law.

Meanwhile the war of propaganda continues with each side accusing the other of committing the same offences.

Following the Easter Weekend we can expect that things will take more momentum ad Ukraine waits for the Constitutional Court to rule and the President's next move as he continues to assert power and authority over the elected Parliament.

News in review

Parliamentary Assembly Council of Europe (PACE) Explanatory Report calls on Ukraine to adopt a Full Parliamentary System in line with other European States

"It would be better for the country to switch to a full parliamentary system with proper checks and balances and guarantees of parliamentary opposition and competition."

Constitutional Court challenge

The authority of the President to dismiss Ukraine's parliament has been challenged in Ukraine's Constitutional Court amidst concern that the President's actions are unconstitutional in that he has exceeded his authority to dismiss Ukraine's parliament.

On April 19 the Parliamentary Assembly of the Council of Europe passed a resolution in consideration of a report titled Functioning of democratic institutions in Ukraine. (Items 13 and 14) stated:

“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides.
”

The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that "Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat." (item 67)

In emphasis the report (item 68) stated

"This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions ”

On April 30, on the eve of the Constitutional Court's ruling on the legality of the president's decree dismissing Ukraine's parliament, President Yushchenko, in defiance of the PACE resolution of April 19 intervened in the operation of Ukraine's Constitutional Court by summarily dismissing two Constitutional Court Judges, Syuzanna Stanik and Valeriy Pshenychnyy, for allegations of "oath treason." His move was later overturned by the Constitutional Court and the judges were returned by a temporary restraining order issued by the court.

Following the president's intervention the Constitutional Court still has not ruled on the question of legality of the president's actions.

Stepan Havrsh, the President's appointee to the Constitutional Court, in prejudgment of the courts decision and without authorization from the Court itself, commented in an interview published on July 24

“ I cannot imagine myself as the Constitutional Court in condition in which three political leaders signed a political/legal agreement on holding early elections, which also stipulates the constitutional basis for holding the elections... How the court can agree to consider such a petition under such conditions.”

Olexander Lavrynovych, Ukrainian Minister for Justice, in an interview published on Aug 3 is quoted as saying

“ According to the standards of the Constitution and the laws of Ukraine, these elections should have been recognized invalid already today. But we understand that we speak about the State and about what will happen further in this country. As we've understood, political agreements substitute for the law, ... The situation has been led to the limit, where there are no possibilities to follow all legal norms.